Chief Justice of India Surya Kant stated on Wednesday that the Supreme Court will examine and take a call on an application seeking the recall of its September 23 split verdict concerning the legal challenges to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The development unfolded during morning mentioning proceedings when Senior Advocate Gopal Sankaranarayanan, appearing on behalf of petitioner Naman Sherstra, brought the interlocutory application before the bench led by the Chief Justice, seeking an expedited listing. The petition requests the apex court to revisit and recall the split decision delivered by a two-judge bench of Justices Dipankar Datta and Satish Chandra Sharma, which had differed on whether the constitutional validity of the 2023 appointment statute should be referred to a larger Constitution Bench of five judges.
The constitutional dispute arises from sweeping legislative revisions enacted by Parliament in late 2023, which redesigned the high-powered selection committee responsible for appointing the Chief Election Commissioner and fellow Election Commissioners. Under the revised statutory mechanism, the panel comprises the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. Multiple petitioners, including the Association for Democratic Reforms and Congress leader Jaya Thakur, challenged the statute before the Supreme Court, arguing that removing the Chief Justice of India from the selection committee—contrary to the apex court’s earlier ruling in the Anoop Baranwal case—violates institutional independence and damages free and fair elections as part of the basic structure of the Constitution.
When the matter came before the two-judge bench, the judges delivered differing opinions on the necessity of a reference to a five-judge bench under Article 145(3) of the Constitution. Justice Datta concluded that the legal challenge could be adjudicated directly on settled constitutional principles without referring it to a larger bench. Conversely, Justice Sharma held that the challenges raised substantial constitutional questions requiring interpretation by a five-judge Constitution Bench. In light of the division of opinion on the procedural question, the two-judge bench passed a common order directing that the case papers be placed before the Chief Justice of India in his capacity as the master of the roster to consider constituting an appropriate bench.
However, the matter took an unexpected legal turn when petitioners approached the court seeking a recall of Justice Sharma’s opinion and the subsequent common reference order. The recall plea does not allege intentional bias or bad faith, but contends that established circumstances objectively create a reasonable apprehension concerning judicial impartiality. The application highlights that subsequent public disclosures revealed that Justice Sharma’s son, advocate Siddharth Sharma, serves as a standing counsel representing the Election Commission of India before the Madhya Pradesh High Court. The petition states that the batch of petitions had been heard across five separate hearings between May and July before orders were reserved, yet the professional engagement was never formally disclosed during open court proceedings.
Counsel for the petitioners argued that the lack of prior disclosure deprived the litigants of an opportunity to formally request Justice Sharma's recusal before the opinions and reference order were pronounced on September 23. The plea maintains that judicial propriety and the time-honored principle that justice must not only be done but seen to be done required disclosing the relationship, thereby ensuring that proceedings involving the poll watchdog remained entirely above question. The petitioners clarified that while they seek the recall of Justice Sharma's opinion and the common order directing placement before the Chief Justice, they have not sought the recall of Justice Datta’s separate opinion.
The procedural path of the recall plea itself saw notable administrative coordination within the apex court. The application was initially mentioned before Justice Datta, who declined to entertain the matter piecemeal, observing that with the reference order already passed, any application seeking recall or review of the proceedings must be placed directly before the Chief Justice of India as the master of the roster. Additionally, the bench was apprised that a separate curative petition had been lodged by another petitioner, Jaya Thakur, on similar grounds of judicial propriety. Acknowledging the filings, Chief Justice Surya Kant indicated that the court had taken note of the developments and would thoroughly examine the interlocutory application before determining the appropriate judicial course.
The unfolding controversy lands at a time of heightened national scrutiny surrounding the leadership and autonomy of the Election Commission of India. As the Supreme Court prepares to consider the recall application, the Chief Justice’s upcoming decision will determine the future trajectory of the constitutional challenge, dictating whether the split verdict stands for Constitution Bench consideration or whether the entire reference will be re-examined by a fresh bench to safeguard public confidence in the judicial review of electoral institutions.